In this episode…

Today’s special guest, Professor Emeritus Edward Lamoureux reveals what can go wrong during an expert witness engagement.

Upon receiving a call for a potential engagement, Professor Lamoureux responded emphatically that he was not the right person for the job. Nevertheless, with the attorney’s insistence, he agreed to accept the engagement.

Check out the entire episode for the story of what went wrong, and what precautions experts can take to avoid similar situations.

 

Note:   Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Edward Lamoureux, Professor Emeritus at Bradley University

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today’s guest is Professor Emeritus Edward Lamoureux from Bradley University in Peoria, IL. Today’s show is a special edition. We’re going to take a look at what can go wrong in expert witness engagements and how both experts and attorneys can get on the same page at the outset. Professor Lamoreaux, thank you for joining me on Engaging Experts.

Edward Lamoureux: My pleasure. Thanks for asking me.

Noah Bolmer: Tell me about your work and how you were contacted for your first expert witness engagement.

Edward Lamoureux: I was a professor at Bradley University. Originally, in the Communications Department, we teach Speech and Communications Rhetoric, Interpersonal Communication, and Small Group Public Speaking. That kind of thing. I transitioned into interactive media and became the concept guy for them. In that process, I co-authored an IP law book for undergraduates. We needed to teach our students in Interactive Media who were making media about intellectual property law and there were no books. I grabbed an IP lawyer from Chicago and a librarian from Northwestern [University], and we wrote a book in 2009.

I’m co-teaching this class, and I don’t know whether the lawyers that employed me read a review of the book or found the book. At that point, I wouldn’t have popped up on the Internet as an expert on trademarks, but I knew about [them] because I was teaching about [them]. They were interested in the unique approach that I took to analyzing language with a PhD in Communication and Rhetoric from the University of Oregon and my dissertation in Used Conversation Analysis, The Everyday Analysis of Speech. Then transitioning to law, no law school, self-taught, but spent 3 or 4 years studying to prepare to do this class, I had a different take on these issues. I got a long-distance call from a lawyer based in Michigan, who was going to do a case in Illinois. They were getting ready for trial and were looking for an expert. The case, roughly speaking, was a trademark case. It was a confusion case. They represented the senior mark and there was a junior mark coming into the market in the same field. The same kind of outfit with a similar name and they were going to set up shop right across the street in many cases around the state, so they ended up in court. [This attorney] said, “We think you can do an analysis that will show maybe people get confused.” I said, “Given what you’ve said about the case and what I know, I probably can because I understand how this works.” I combine rhetorical criticism with conversation analysis and a little brain science because that was the beginning of mapping how people’s brains worked in terms of making metaphors work. At that point, I said, “You [must] understand something.” I stopped the conversation, and said, “You [must] listen to me. I’m not the right guy.”

Noah Bolmer: You told them you were not the right guy?

Edward Lamoureux: Literally, those may have been what my exact words were.

Noah Bolmer: Were you looking for expert witness engagements?

Edward Lamoureux: At that point, I wasn’t signed up. Subsequently, I sought to see how this would work, but at that point I don’t think I was on the board. I might have had an inquiry, but I hadn’t done any cases. This was a risky experience.

Noah Bolmer: Sure. So, you say no.

Edward Lamoureux: I said, “You don’t want me.” and he said “Why?” My explanation was, “I combined three or four different fields, and I know that I’m describing how meaning works in everyday life. That’s a description that comes from a number of different disciplines, and it’s hard for people to make that connection. If that gets presented to a judge or a jury, they may not understand. If it gets presented to technical experts in any of those disciplines, they may not agree with what I’ve come up with. I’m combining stuff.” I said, “What you need to do is, the University of Illinois is down the road. They have many PhDs down there and some PhD graduate students in linguistics who can do a linguistic analysis of the words. It’ll be technical. It will be wrong because that’s not how people think, but it will be more acceptable to experts and perhaps to the court.”

Noah Bolmer: Not only did you say that you were not the right person, but you tried to send him along a pathway that would work better.

Edward Lamoureux: I did. I didn’t have a name, but I said, “You need this kind of person, and there [are many] of them. Not at Bradley or Illinois State. You need to. Go to the [University of] Illinois at Urbana-Champaign.” I didn’t have a name handy because it’s not my discipline. I know they’re down there. “No” he said, “We want what you can do. We want to know what people are thinking. What is Joe Friday doing when they’re driving by and seeing the signs.” I said, “I can do that. What do I do?”

Noah Bolmer: You felt that you had given him enough of a disclaimer, and if he still wanted to proceed, it was on him.

Edward Lamoureux: On top of that, I honestly believed at the time, and I still do- I go back and look at that report once in a while, and I was right. I wrote a report that makes a credible argument as to how people can get those two marks confused. I would write a better paper today, but the one I wrote was fine.

Noah Bolmer: You didn’t write anything that you didn’t agree with. You were completely honest.

Edward Lamoureux: Absolutely. And scholarly. It was a [good] argument. I said, “What do I do?” He said, “You write it up.” I said, “How? What do you mean write it up? I’m a total rookie. I’ve never done this.”

Noah Bolmer: What’s an expert report?

Edward Lamoureux: What’s an expert report? He says, “Well, you’ve written academic papers, right?” I’ve published papers and books.” I was an academic journal editor for 2–3-years terms. I’ve edited stuff. I know how to write. [He says,] “OK, do that. But keep it short. It’s not a book. It’s not a published article. Then send it to us and we’ll mark it up.” I hung up from him and called my co-author and co teacher who was an IP lawyer in Chicago and told him the story. I said, “Can you send a sample?” It happened at the time he didn’t have one. He said, “I’ve seen your writing. We’ve written together. Write it up.” I didn’t have a sample. That’s a touch point for anybody who takes one of these things and hasn’t done it before. Get a good sample.

Noah Bolmer: Did you ask for a template, a sample or anything like that?

Edward Lamoureux: I sent the report, they marked it up, sent it back, but they didn’t mark it up much. A few things. I made the changes and submitted it. There was a deadline that I was told, we to have it by X date, whatever it was.

Noah Bolmer: Was it a tight deadline from the time of engagement? [Or did] you have plenty of time?

Edward Lamoureux: No. Not at all, but I didn’t know what the deadline was, and that’s going to come up later in the story. I’ll preface it by saying I don’t know who had the deadline. I met the deadline they gave me. The next thing that happens is it continues. Nobody settles. We’re going to do a deposition of me with regard to my testimony as submitted in my report. Never done that either.

Word to the wise on this, if you’ve never done this before, you should get coached. In fact, I would recommend that you have a dummy session, a practice session with an aggressive, adversarial lawyer type who’s going to show you what this might be like because I was totally unprepared. I got in my nice-looking outfit and drove down the street forty-five minutes to Illinois State where they wanted to meet. I went in the room and the opposing lawyer proceeded to spend 45 minutes tearing me new body holes. It was- I was totally unprepared for it.

My history’s good. I’ve never committed a crime, other than traffic tickets. I’m a straight guy, but by the time we got done, he brought up stuff I’d forgotten. I had no idea we were going to do that for 45 minutes.

Noah Bolmer: We have to dig into that. What is it like getting in a contentious, difficult deposition without preparation? If you had to do it over again, what are the things you would do to prepare?

Edward Lamoureux: In the first case, among lawyers, it’s common knowledge that the first part of that deposition is going to go into the history of the potential witness. I didn’t know that. Knowing that would have helped a little bit. I tried hard not be defensive, but this guy’s asking me questions that, again, I didn’t remember the answer to some of them. “When did I do this?” Or “Were there problems with doing something else?” These were all work related. I tend to speak up a lot, and I can get in trouble now and then. He seemed to know everything about me and that’s fine. I can defend myself, but I was unprepared for the level of confrontation. It threw me off because I wasn’t prepared. I didn’t know that this is coming.

It also- it was unnerving. It was 45 minutes of grilling. I didn’t expect the tone of it. He was nice enough, but literally, it was grilling. If we had gone through deposition, gone to trial, and I had been on the stand if in front of judge or jury, the witness gets attacked. That wouldn’t surprise me at all. Witness credibility. I get it, but in the deposition, I expected to just explain my report.

Noah Bolmer: Right.

Edward Lamoureux: That’s not what happened. We got done with forty-five minutes of that and he brings my report over, looks at it, and starts to ask me about the concepts around my report and what I’d written. I’m watching and listening. We’re sitting at a desk. He’s a nice young man. I’m probably twenty years older. I know what the education of most lawyers is, and no disrespect, I know what they’ve studied. All of a sudden this guy’s a technical expert about all of the things I’ve written at a level- I’m baffled. How does- What? We did this for about two and a half hours, going through the report. He sounded like an advanced PhD student at the least. All of the things I had written, but because I had a few years on him and wrote the report, I didn’t have any problems. At lunch, the attorney that hired me said, “You did fine.” I thought I did.

We get done with the back and forth on my report and he gets up to go to lunch, and before he hits the door, he turns around, throws a folder down on the desk and says, “Here’s our expert report.” My lawyer goes, “Huh?” I looked at him and did the same thing. The implication of that and the fact I had submitted mine on a deadline, I don’t know- I assume their guy, their expert, submitted his by the same deadline, but we sent mine to them in discovery and they didn’t send theirs to us.

Noah Bolmer: It may have been a rebuttal report written specifically after yours. It sounds like that’s what happened.

Edward Lamoureux: Okay. Was this something that we needed to prepare for in a different way than we’d prepared for it?  Because it was devastating. Had I had any inclination about what he was going to do- I didn’t even know- At that point, I didn’t even- I wasn’t even sure they’d employed an expert, by the way. We didn’t know that they had one. I had asked my lawyer before we went to Illinois State, “Do they have an expert?” I [was] repeatedly told, “We don’t know yet.” Everything the lawyer asked me now comes into crystal clear clarity. He has used this report by his expert, which I’ll talk about in a minute, as a launching pad for asking me questions about my testimony.

Noah Bolmer: Right.

Edward Lamoureux: I’m helpless. I can answer him, but I’m helpless. I have no defense in terms of the lawyer, or their expert said. Then, what we found out when we looked at that report over lunch, and I was having trouble getting anything in at all from the shock, was they went out and found the guy, the type of person I had recommended. They went to an Ivy League school and got a senior member of the faculty, retired emeritus, who had done, I’m going to say thirty trademark cases exactly like this one. Had done the same linguistic technical analysis that I said would be appropriate and tore my report to shreds. Then wrote his linguistic analysis, and that was his report. Without sounding overly self-congratulatory, it’s the same thing I said at the beginning, but I told the lawyer he was wrong. I was closer to right in terms of the way everyday people think but you can produce a linguistic analysis that says, “Here’s what the linguistic science says is going on in people’s brains. Here’s how we believe in linguistics. By the technical rules of linguistics, we can say here’s how meaning works.” There’s some stuff in there that works, but [much] of it is just for those guys. It’s not how people think.

Noah Bolmer: Sure.

Edward Lamoureux: People use different ways of thinking, which is what I wrote about. We went back in after that, and the fun was over. We went over stuff again. As you know, you can’t- you do get an edited version of the- I’m sorry you get the transcript back from the deposition and you get a chance to edit, but you can’t make any substantive changes. I went in and I did- I called both lawyers, the guy who employed me and my colleague and said, “How much of this can I shape given that now I know what they’re up to?” They said, “You’ve got to be awful careful. Not very much.” I made a few changes and tried to shape it a little and not long thereafter we heard that I wouldn’t need to go to trial because I’d been released by a Daubert challenge. The judge had determined that I was not expert enough.

I got some money from this, and a little experience. I think it’s going to be a while before I get to do another one of these. Then six months or so later, I don’t know if it was quite that long because it’s still 2009, I’m on the Internet looking at my reputation because I try to keep the thing clean. There’s little in the way of bad stuff about me, and I come across this article by a blogger who’s a JD and does analyses of cases. This is an analysis of a trademark case in which there were expert witnesses and expert reports. There was no word survey. It relied on the experts and why I was out on a Daubert out. I wrote to her, and I said, “Here’s what happened. This was the lawyer. This wasn’t me.” She hid behind 230, which we’re not going to have that conversation right now, but there are reasons why not being able to force people to take stuff down is problematic. She wouldn’t take it down. I’m stuck with it. I thought, “That’s it. I’m toast.” That’s the story.

Noah Bolmer: A couple of things. In retrospect, were there any red flags that should have alerted you that, “I need to bug out early. I shouldn’t be on this at all.” Things you could have done differently. Were there any red flags that you feel you might have missed?

Edward Lamoureux: Not that I missed, but I knew weren’t good enough. There were indications. I knew that it wasn’t up to speed. First of all, I was not able to ascertain what the difficulties might be from an out-of-state lawyer. It is problematic for a new person, an absolute rookie [on their] first case to not have a template to write to. You have to have at least two samples, a good one and a bad one. When I teach writing to students in college, every assignment has two samples, one good one, and one bad one. I don’t tell them what they have to write or how they have to write. I give them samples. This one was an A, this one wasn’t.

I got no help. How would you know? Common sense, yes. On the other hand, if the engaging lawyer says, “No, just write it up.” In this case, even my colleague friend said, “You’ve written stuff that has been published. You’ve written articles and books. Just write it.” If I’d seen a linguistically based report, like the expert had written, I would have changed my style.

Noah Bolmer: Did this entire experience have an impact on you professionally or personally after that? Was this difficult to get through, or was it a “Hey, these things happen.” How is it to get through these things? I ask because newer expert witnesses might experience this. What is the worst-case scenario? What is it like to have to go through- After the case is done, how do you move on from there?

Edward Lamoureux: The hardest part for me is that there’s no recourse. When you’re a lifetime academic- I was in higher education for almost 50 years. There were a lot of rejection notices. The way we write, we’re going to write maybe three, four or five that are going to rejected as we work down the decision tree that somebody will finally take it. I got a stack of rejections this high. I’m not impervious to rejections. I respond constructively to rejections. My problem with this one, and there’s no way to advocate for this, you asked and I’m telling you. I would have liked to have had a venue to contact the judge, the court, because I think they needed to know that they released an expert not based on what the expert did but based on what the lawyers did. Not being able to give the judge, the court, or the process that feedback- I don’t know how to put that but not being able to put that feedback leaves things like an open wound. There’s no fixing it. For me, I assumed that I’m no longer available. I make money in other ways in my life. I wasn’t desperate for it, but I assume that I’m out now. That might be an inaccurate assumption depending on the subdiscipline that somebody asked me about.

This is a game for- and game is the wrong term. This is an activity for people who have experience and the only way you can get it is to be successful a couple times and continue to be successful. There are people who weren’t successful, maybe not for the reasons I’m not, but what are they supposed to do? How are they supposed to repair that reputational issue? Additionally, and quite literally, you could look, for as long as you want to look- Your listeners could look if they want to, and you won’t find anything negative about me on the Internet except because I was a hard teacher, every once in a while the students gave me a not-so-great rating on rateyourprofessor.com, but as long as you stay off rateyourprofessordot.com- I’m not angelic. I’m not the Second Coming, but I have an excellent reputation except for that one blog. I used to teach students all the time about the pros and cons of 230, and there are a lot of cons on Section 230. There are many places where innocent people get damaged and they can’t do enough under the law to fix that damage. That’s another conversation, but it’s problematic.

Noah Bolmer: Before you wrap up, do you have any last advice for newer expert witnesses in their first engagements or even attorneys who are working with inexperienced expert witnesses?

Edward Lamoureux: We’ve talked about the touch points about providing aids and stuff. Here’s the thing: At what point do you say I need the money, but I don’t need it that badly. That’s an individual line. What I would say is if you’re thinking about whether you need the money that badly, maybe you don’t. It depends on your philosophy. Some of us think that if money is the only motivation, maybe we shouldn’t be doing it. At least give it a second thought. If you’re pressed, and it’s for the availability of the funding then that’s probably not a good enough reason to do it. The other thing is, I was clear that I was not the right guy. I didn’t try to slide in saying maybe I can get this done even though. I told the [attorney], “I’m the wrong guy” and I explained why. He insisted. If the attorney insists that I’m the right guy, I’m going to have to be willing to take the shot, if it ends up damaging me, then it was bad lawyering. I don’t think you can tell a rookie how to watch for bad lawyering because there are too many things that the lawyer can do wrong. Just as they can do many things right. That’s a tough one. You’re going to jump in and buy your ticket; you take your chances. I would speak up. I did, and in my case it wasn’t enough. I should have spoken out more. “No, I’m not writing this report until I get a sample.” Something like that.

Noah Bolmer: Dr. Lamoureux, thank you for joining me today and sharing your story with us.

Edward Lamoureux: Thanks for asking. It’s always a pleasure to talk with folks who are interested in life stories. I was in Rhetoric and Communication. Life stories are my thing. It was great. I appreciate the opportunity.

Noah Bolmer: Of course. And thank you as always to our listeners for joining us for this special edition of Engaging Experts. Cheers.

Professor Emeritus Edward Lamoureux, Bradley University

Professor Edward Lamoureux's research includes ethnography/field research, rhetoric, religious com., conversation, teaching and learning in virtual worlds, & non-linear writing. His publications include books on IP law, privacy & surveillance, & numerous journal articles & book reviews.